N.C. law: Woman can’t back out of sex once underway

By Monica Vendituoli mvendituoli@fayobserver.com

Friday

Mar 22, 2019 at 2:58 PMMar 22, 2019 at 3:10 PM

Editor’s Note: This story was originally published June 22, 2017. An investigative collaboration of 11 news organizations led by Carolina Public Press and reporting on sexual assault convictions in North Carolina was published this week.

Aaliyah Palmer was at a party when a man pulled her into a bathroom for sex.

She was willing.

But, she told Fayetteville, N.C., police, when the sex turned violent, she told the man to stop. He didn’t listen.

She thought what happened to her was rape, but she found out that under North Carolina law a woman is not allowed to back out of sex once it is underway.

“It’s really stupid,” Palmer, 19, said of the law. “If I tell you no and you kept going, that’s rape.”

The Fayetteville Observer does not ordinarily identify victims of sex crimes, but Palmer wanted to go public with her story. The Observer is not naming the man involved in the incident because he has not been charged with a crime.

In 1979, the North Carolina Supreme Court, in State v. Way, ruled that women cannot revoke consent after sexual intercourse begins.

Jeff Jackson, a Democratic state senator who represents Mecklenburg County, is working to get the law changed. He said many other women have approached him privately about cases in which they withdrew consent for sex, but the law would not permit the men to be charged.

“Legislators are hearing more and more about women who have been raped and are being denied justice because of this crazy loophole,” Jackson said. “North Carolina is the only state in U.S. where no doesn’t mean no.”

Jackson is the sponsor of Senate Bill 553, which would criminalize the failure to stop intercourse when a woman who had originally consented changed her mind. As the end of the current General Assembly session draws near, the bill is stopped in the Senate’s Rules Committee. He said it will probably be dead for the rest of the two-year legislative session.

“There’s no reason for this to be partisan,” Jackson said. “It’s about doing what’s obviously right.”

Palmer is at least the second woman in the last two months to come forward publicly with a story about withdrawing consent for sex only to learn that the man involved would not face a rape charge.

In a Wake County case, Amy Guy’s estranged husband was initially charged with second-degree rape after he showed up drunk at her apartment and demanded sex, Guy said. She consented at first, but said she told him to stop after the encounter became violent.

Because of the 1979 ruling, the rape charge was changed to a misdemeanor assault charge.

“Amy was the victim of a law in addition to being a victim of rape,” her Raleigh lawyer Kristopher Hilscher said. “It’s had a chilling effect on prosecutions.”

Anne Munch, a lawyer with experience as a prosecutor and an advocate for victims of sex crimes, said North Carolina’s laws on consent are vague and “ripe for reform.”

“Prosecutors can only do what the law allows them to do,” she said, “so when consent is withdrawn by the victim and the sex act continues by the offender, the current state of your law appears to categorize this as noncriminal.”

Secret video

Palmer’s story originally came to light because four soldiers, one a captain, have been accused of making or possessing a video of her sexual encounter. Court records do not indicate whether the man she accused of rape was a soldier as well.

Palmer said she and a friend met the man and his friend John Nagy, a soldier, on Tinder Social, a mobile app to connect people.

“You would think I could trust people in the Army,” Palmer said.

Around 11:45 p.m. on Jan. 21, Palmer went to a party in an apartment complex off Yadkin Road near Fort Bragg.

“There was tons of girls everywhere in the first apartment,” Palmer said, which she said put her at ease.

Palmer said she and the man went into a second apartment and the man pulled her into a bathroom. Palmer said she initially consented to have sex with him, but then asked him to stop after he started to pull out hanks of her hair about five minutes into the encounter.

“I said, ‘You’re hurting me. Stop,’ ” Palmer said.

She said she asked the man to stop several times, but he didn’t. The probable cause affidavits in the case files of the soldiers charged in connection with the videotaping provide some corroborating detail.

“Ms. Palmer stated that while attending the party, she and (the man) began to engage in consensual sex that turned rough,” the affidavits said.

During the incident, the affidavits said, Palmer noticed that a cellphone had been placed at the bottom of the door and appeared to be creating a video of the incident.

After the man let her go, Palmer called another friend who lived on Fort Bragg and stayed the night with him.

The next day, she went back to the apartment complex to retrieve her boots, which she had left behind. Palmer said she discovered that someone had defecated in them.

Palmer said she had a panic attack when she went to a plaza on Fort Bragg that day.

About 36 hours after the incident in the apartment, Palmer went to authorities at Fort Bragg and reported what had happened. Fort Bragg officials told her that she needed to go to the Fayetteville Police Department because the incident took place off the military post. After talking with police, she had a rape kit completed at Cape Fear Valley Medical Center.

“The rape kit took hours,” Palmer said. “Having that done was terrible and all for nothing.”

After Palmer reported the incident, police interviewed Nagy, Anthony Johnson, Jeffrey Creech and Samuel Mazariegos. An 82nd Airborne Division spokesman confirmed that all men are active-duty soldiers in the unit.

Court documents said Nagy made two videos and then shared them. He’s been charged with two counts of being a peeping Tom and illegal possession of peeping Tom images. Johnson, Mazariegos and Creech have been charged with illegal possession of peeping Tom images.

“Capt. Jeffrey Creech of Fort Bragg stated during a voluntary polygraph examination that he received a video via ‘Snapchat’ from Samuel Mazariegos,” according to court documents. “Mr. Creech also stated that he got rid of the video after being initially questioned about having the video and providing it, hence further obstructing and delaying the progress of the rape investigation.”

Creech was charged with misdemeanor obstruction of justice in addition to the peeping charge. Evidence that Mazariegos defecated in Palmer’s boots led police to charge him with misdemeanor injury to personal property.

Fayetteville Police Lt. Todd Joyce said detectives reviewed several pieces of evidence in the case and determined that they did not have the evidence to support a charge of rape. He said he could not comment on the case further. Cumberland County District Attorney Billy West also declined to comment due to the pending case against the four soldiers.

Palmer is trying to get her life back together after the incident. Palmer said she withdrew from her second semester at N.C. State University due to panic attacks. But she is speaking out.